DR. SCHILF: Yes. Mr. President, I should like to do that subsequently to Klemm, but the problem is whether we can get Franke in time.
MR. LAFOLLETTE: I am a lettle confused now. Would you give me the English channel and see if I am getting it. I never understood why Altmeyer wasn't produced for cross examination. Do I understand there was an objection by the Prosecution about him being produced? At the time I wondered why he wasn't produced, because he was here. Now, do I understand that he is to be cross examined or a witness in chief for the defendant Klemm. I would like to have that cleared up.
THE PRESIDENT: If he was on the list, as one whose name was presented to the Court as an affiant for the Prosecution, and whom the Defense desired to cross examine, and he has not been cross examined, the Defense is at liberty to get him here now and cross examine him.
MR. LAFOLLETTE: There is no question about it. I wanted to know whether a cross examination confronted me upon his evidence in chief of the Prosecution or whether he is to be made in addition a defense witness. That I would like to have cleared up; I would like to know that.
THE PRESIDENT: That depends upon the information in the possession of the Defense Counsel.
MR. LAFOLLETTE: But we are entitled to our 48 hours' notice, and I don't know anything yet.
DR. SCHILE: I want to call Altmeyer only for cross examination; not as my own witness, but excuse me, Mr. President, in this connection I still have the following to say. The cross examination of Altmeyer is to be very extensive, and that because I have to put to Altmeyer the Document Book III-L of the Prosecution.
I have to discuss page for page of that document book with him, and that document book has 143 pages. Therefore, I intend to make the motion that the cross examination of the witness Altmeyer be made before a commissioner, so that I don't have to bother the Tribunal with all these detailed questions.
MR. LAFOLLETTE: May it please Your Honor, it occurs to me that that matter will arise when it comes. I don't recall that our affidavit of Altmeyer covered the material of all of Book 111-L, as I recall it.
THE PRESIDENT: We have great doubts about that. We know of no reason now, as long as the present judges are able to sit on the bench, why we should call any commissioner unless some special circumstance arises examinations will be held before the Tribunal.
Now, with reference to Franke. All that the Tribunal can do is to make an order, such as has been made before, upon the Secretary General to exert his best efforts to secure the witness. We have no more knowledge -- in fact much less knowledge that counsel for both sides have as to whether it is possible to secure him; but the order will be made, and the Secretary General in good, faith will attempt to secure the witness for you.
You may proceed with the case Klemm.
DR. SCHILF: May it please the Tribunal I call first, as a witness in his own case, the Defendant Klemm.
HERBERT KLEMM, a defendant, took the stand and testified as follows;
BY JUDGE HARDING:
You will raise your right hand and repeat after me:
I swear by God, the Almighty and Omniscient, that I will speak the pure truth and will withhold and add nothing.
(The witness repeated the oath)
You may be seated.
DIRECT EXAMINATION BY DR. SCHILF: (Attorney for the Defendant Herbert Klemm)
Q: Herr Klemm, I ask you first to tell the Tribunal your birth date, the place of birth; and to give the Tribunal a short description of your life, and which should also show your professional career.
A: I was born the 15th May, 1903 in Leipzig. After I went to public school, to secondary school, and the Gymnasium, I studied at the Universities of Leipzig and Goettingen. In 1925 I passed my first state examination in law and then went into the preparatory service in Saxony, and in various cities in Saxony did my service as referendar there. In 1929 I passed the second state examination, the so called assessor examination. I passed that examination in Dresden, and immediately thereafter I was appointed assessor with the prosecution of Dresden from the 15th November, 1929.
A. There I had a Referat of my own such as prosecutor until March 1933. At that time as personal Referent and adjutant to the Minister of Justice of Saxony - that was Dr. Thierack - I came into the Ministry of Justice for Saxony, where I remained until the 31st of March 1935. On the 1st of May 1933 I became prosecutor; on the 1st of May 1934, senior prosecutor (Oberstaatsanwalt) with the designation of first prosecutor. On the 1st of April 1935 the administrations of justice of the Laender were definitely dissolved and merged with the Administration of Justice of the Reich, and on that day I was transferred to Berlin and started to work in the Reich Ministry of Justice in the then Department III, which later became Department IV. I was there until the outbreak of the war. On the 27th of August 1939 I was drafted into the armed forces and participated in the Polish campaign. Then I was stationed along the West Wall and then I took part in the campaign in France as an engineer officer. On the day of the armistice with France I was sent back home and declared indispensible in order to, upon military orders, go to Holland and to enter the office of the Reichcommissar as a civilian official in order to establish there the department for civilian administration of justice. I assumed this office on the 1st of July 1940 and was at The Hague, in charge of the main department of justice with the Reichcemmissar for the occupied Netherlands, until 16 March 1941. I still have to mention that on 20 April 1939 I had been promoted to the rank of Ministerialrat. In the middle of March 1941 I was again transferred. I was assigned to the Party Chancellery in Munich in order to take over there the group "justice", the so-called group III-C. My military assignment order, that is to say, the certificate which contained the disposition of the armed forces where I had to work, said that I had to follow the directives, the orders of the Reich Commissioner for the Occupied Netherlands at all times, and I got the directive from the Reich Commissioner to go to Munich and to work there in the Party Secretariat (Parteikanzlei). There I took over the Group III-C, the Justice Croup. At the end of 1942 I became Ministerial Director without any change in my job or in my official posi tion, and I continued in that position until the end of 1943.
On the 4th of January 1944 I started in the position as Under Secretary in the Ministry of Justice in Berlin. I held that position until the surrender.
Q. There is one supplementary question I should like to ask. When you were working in the various offices which you have mentioned, did you only deal with penal matters or civil matters, or primarily with one or the other?
A. As long as I was an assessor with the prosecution in Dresden, I had to deal with non-political penal cases only. As personnel Referat of the Saxon Ministry of Justice I had to handle civil matters and penal matters to about the same extent, depending on how these matters had to be submitted to the Minister. But apart from that I had special tasks from time to time dealing with penal cases. That was in the Ministry of Justice in Saxony. In the then Department III of the Reich Ministry of Justice, that is to say, from 1935 until 1939, I exclusively handled penal matters. Then I was a soldier. During my activity in the occupied Netherlands I dealt with about sixty percent penal matters and forty percent civil matters. At the Party Secretariat (Parteikanzlei) there were also penal and civil cases to handle, and as Under Secretary, again, cases were submitted to me from various departments.
Q. Mr. Klemm, I should like to ask you now about your connection to the NSDAP and the SA or other organizations. Please explain first the circumstances of your entrance into the Party, your activity in the Party, and your offices in the Party.
A. I joined the NSDAP on the 1st of January 1931. I held no offices and was not active on the whole during the years up to the seizure of power by the NSDAP. The Party at that time, at least in Saxony, did not insist on open activity within the NSDAP in the case of people who at that time, because they belonged to the NSDAP, under certain circumstances might have incurred professional difficulties. I was at that time an assessor with the possibility of receiving a notice of discontinuance of work in a Quarter of a year, and the possibility really existed that I might have been dismissed on these grounds.
Therefore, I did not make any public appearances, but was only a member of the Party. I joined the SA as late as the 30th of June 1933, and upon request and explicit demand by the Brigadefuehrer of the Dresdner SA, and upon the request of the Saxon Minister of Justice, Dr. Thierack; the SA Brigadefuehrer -- having approached Dr. Thierack with the request that he nominate a legal advisor for him-
Q. Dr. Klemm, I think we will interrupt now. The time has come.
THE PRESIDENT: We will adjourn at this time until Monday morning at 9:30.
(The Tribunal adjourned until 7 July 1947 at 0930 hours.)
Official Transcript of the American Military Tribunal in the matter of the United States of America against Josef Alstoetter, et al, defendants, sitting at Nurnberg, Germany, on 7 July 1947, 0930-1630, Justice James T. Brand presiding.
THE MARSHAL: Persons in the court room will please find their seats.
The Honorable, the Judges of Military Tribunal III.
Military Tribunal III is now in session. God save the United States of America and this Honorable Tribunal.
There will be order in the Court.
THE PRESIDENT: Mr. Marshal, will you please ascertain if the defendants are all present.
TEE MARSHAL: May it please Your Honors, all the defendants are present in the courtroom with the exception of the defendant Engert, who is absent due to illness.
THE PRESIDENT: The defendant Engert has been excused. Let proper notation be made.
The Tribunal has an announcement of interest to counsel for both sides. The time set for the argument upon the sufficiency of Count I of the Indictment, with reference to the charge of conspiracy, is Wednesday morning, July 9th, 1947, at 9:30, in the large courtroom I take it that is the courtroom of Tribunal I. At that time there will be a joint session of the judges to hear arguments upon that issue. For that reason Tribunal III will not sit at any time on Wednesday of this week. On Tuesday evening we will adjourn this Tribunal until Thursday morning.
You may proceed with the examination of the defendant Klemm.
HERBERT KLEMM - Resumed DIRECT EXAMINATION (Continued) BY DR. SCHILF (Attorney for defendant Klemm):
Q May it please the Court, with the permission of the Tribunal I am now going to proceed to examine the witness Klemm.
Q Witness, before we adjourned you had. talked about the fact of your entry into the Party. Please proceed. You have told us that before the seizure of power, on the part of the NSDAP, you were, as an assessor, in the Ministry of Saxony, not active in the service of the Party.
AAlso, immediately after Hitler had become Chancellor of the Reich I did not play any part in the Party until, as I have already mentioned, on 30th of June, 1933, I joined the SA. I have also already mentioned that this occurred at the request of the SA Brigadefuehrer in Dresden to the Minister of Justice in Saxony and that Dr. Thierack, the Saxon Minister of Justice, expressed the wish that I should assume that office so that we should be able to exercise influence on the SA. As legal advisor of the then Untergruppe - it was called Brigade at a later time - of the SA, I began work but after a few months, in the fall of 1933, I was transferred to the SA Group of Saxony. This was the supreme SA authority for the whole of the land of Saxony. That again was highly desirable for the Administration of Justice because now the field of competence of the SA Saxony and the field for which the Ministry of Justice for Saxony was competent. I was fully aware that I was not able to do active SA duty, that is to say in a Standarte or a Storm, for the simple reason that my time did not allow me to do any duty for the SA. If I meant to do any work for the SA.as afar as I was able to do so, then, because of professional duties, this was possible only if I, myself, arranged my time accordingly. Thus it happened that I was appointed legal advisor for the SA. when in 1935 the Administration of Justice was centralized, and I became to Berlin to the Reich Ministry of Justice. I had to be transferred from the SA point of view, and I joined the adjutant's office, of Lutze, Chief of Staff of the SA, again to work there as legal advisor.
Q Witness, the Prosecution also mentioned your work in the NSRB, the National Socialist Jurists' League. Please give a brief account to the Tribunal of your work there.
A In the National Socialist Jurists' League I only entered in the middle of 1933.
that is to say after Hitler had become Chancellor of the Reich. In the Jurists' League I did not do any work. Only in 1944, and that was in the fall of 1944, Thierack, who was the head of the Jurists' League, appointed me his deputy. That work existed only on paper, for as Thierack's deputy I did not do any individual work of my own, but I was only to deputize for him in his absence, but it never happened that I in his absence had to deal with any question of the Jurists' League and had to settle in his place. Every now and then the manager of the Jurists' League came to see me, and merely told me that he had been to see Thierack and had discussed with him one point or another.
Q Herr Klemm, what were the outward circumstances - there is trouble with the sound system. I will repeat my question.
THE PRESIDENT: The mechanical system seems to be out of order. We will recess for a few moments until such time as it may be repaired.
(A short recess was taken at 9:45 a.m.)
THE MARSHAL: The Tribunal is again in session.
THE PRESIDENT: You may proceed.
BY DR. SCHILF:
Q Witness, you were going to tell us something about your relations with the National Socialist Jurists League. Please continue.
A I wanted to supplement my account to this extent. When I was in Munich, Thierack appointed me liaison officer between himself, the head of the NSRB, and the Reich Leadership agencies of the Party as far as they were located at Munich. I am only mentioning this here to give a complete picture. I am going to refer to these matters when I come to talk about my work at the Reich Chancellery.
Q You have described to the Tribunal your outward relations with the Party. I would now ask you to tell the Tribunal about your inner relations to National Socialism in brief.
Court No. III, Case No. 3.
A It is not easy for me to talk about that matter, because I am not a politician. I only approached all those questions in an emotional way. In my parents' home I was educated in a social manner because my father had a very difficult childhood. I was educated in the national sense on account of the times in which I lived. When the first World War broke out I was 11 years old. When it ended I was between 15 and 16 years of age. In the years from 1918 to 1933 when my personality developed, I witnessed a period with many political manifestations. For me it has therefore always been a painful experience to see how the Marxist parties in Germany always represented the international idea, first, and then only the national idea, while in other countries the members of those parties always were first French or British and next socialists. From the education I enjoyed in my parents' home it happened that I had little inclination and no understanding for the political aims of capitalism and the large lando-.vners, and I saw the failures of parliamentarism in Germany. The elections with 30 to 50 party proposals. I believe the record for an election for the Diet was 52 proposals for different parties. I witnessed the debates at the Reichstag, the formations of various governments which were anything but a policy for the whole of the people and only meant that the individual parties represented their own interests. I saw in the NSDAP the fortunate solution of being social and national at the same time. I saw that the simple workman again became enthusiatic and was again given a feeling for a concept of the fatherland at a time when millions of Germans characterized their political feeling and their political endeavor by the cry "Heil Moscow." That was how I saw the NSDAP, and that was also why I relied on Hitler's speeches. Never -and I can say that today with a good conscience -- would I have become a National Socialist if one could have guessed that those events would have taken place which today one can summarize by the words "Auschwitz, Belsen, or Einsatzkommandos (special detachments) in the east."
Q You were familiar with the Party program?
Court No. III, Case No. 3.
A Yes.
Q You were a jurist when you joined the Party. Did you believe as a jurist that the aims of the Party program were following the ideology of the constitutional state in the same way as would have corresponded to your own former views?
A I was firmly convinced of that. Above all, for the reason that no German government until 1933 possessed any authority. And I expected that a strong government at home would also strengthen the authority of the judiciary. The judiciary, in particular, in the years from 1918 to 1933 was a welcome object of battle among the various parties. Frequently the judiciary was attacked, not for itself, but was used and was soiled to produce disadvantages in the political field for some other party. And I also expected that all the disputes which existed between the various parties concerning problems of the judiciary would be reduced to a reasonable standard. Problems of the judiciary, until then, had constituted controversies between the various political parties and I hoped that the fact that high treason again was going to be considered as high treason and not just a crime committed by a gentleman, that debates whether abortion was punishable or not, whether homosexual crimes were punishable or not --- all those arguments were engaged in for political reasons and not for their own sakes.
Q Mr. Klemm, please tell the Tribunal whether in the course of time you heard anything of Hitler's intentions to make war or intentions of his entourage on that subject.
A I never heard anything about that. On the contrary, I entirely believed in Hitler's continuous protestations for peace, to which he gave expression in his speeches. Even events such as the occupation of the Rhineland, the introduction of conscription, the construction of the West Wall, which was purely defensive, all those things I interpreted as a powerful but peaceful policy. In all those questions I was dependent on what the press and the radio announced in Germany.
Court No. III, Case No. 3.
Q Until the outbreak of the war, as was shown particularly here in Nurenberg, crimes were committed. Please tell us what you knew about that at the time.
AAs an example I should like to refer to the Roehm Putsch in 1934. Of those matters and the inner events, I heard little except for what was announced. Except for what I heard within the framework of the SA group Saxony. I was a member of the disciplinary court for the SA group Saxony which dealt with the purge of the SA of elements which had taken part or had intended to take part in the Roehm Putsch. Thus I obtained a certain amount of insight as to how dangerous Roehm's plans had been and as to how far in part the preparation had gone. The measures which were taken at the time, I had to consider as legitimate defense in order to avoid more bloodshed, and for that reason as justified. That in the framework of these measures also incorrect steps were taken outside Saxony, of that I was not aware at the time. The law which was promulgated then which made the measures taken to overcome the Roehm Putsch legal, were to me proof for the fact that those necessary measures also were to be given a legal basis.
For the rest, I heard nothing of such crimes.
Q: What was the state of affairs after the outbreak of the war? Hitler's decree on the secrecy concerning civil servants in itself limited knowledge. I am now asking you whether, beyond that, in virtue of your positions in the Party Chancellery and later on as Under-Secretary, you had any information which exceeded information in general, such as the German people obtained it from radio and press?
As No. I adhered strictly to that order on secrecy by Hitler. I never attempted to bear of anything which I did not have to hear of in the course of my official duties, perhaps simply for curiosity. In accordance with the instructions, I did not listen once to a foreign radio station during the war merely for the reason that I as a jurist told myself, "You could not possess the inner justification to pass judgment in the case of a trial of one who had listened to an enemy radio station if you yourself did so." I heard nothing else than what the German people heard through the press and the radio. I believe I can say actually that I knew less, simply for the reason that rumors which were discussed among the people were not discussed with me because of the positions I held, and I did not meet people who had bad experiences in that respect.
Q: We are now coming to the first phase of your official activities. At the start you mentioned that your career in the Administration of Justice began in the service of the land of Saxony. Please give a brief description of your work until the time when you were appointed to the Reich Ministry of Justice.
A: As Personnel Referent and Adjutant to the Ministry of Justice for Saxony, I was not fully occupied. Saxony was not very big. After the centralization, there was only one oberlandesgerichts area. Therefore at the Ministry of Justice for Saxony, I was also occupied with special missions which dealt with penal matters and individual big trials. Thus for example I was responsible as an expert on behalf of the Ministry in the Hohenstein case which I believe played a big part in the IMT trial.
Q: Kindly give a brief account of the Hohenstein case to the Tribunal. Tell us what was the subject of that case.
A: In Hohenstein, a small town about 40 kilometers to the south of Dresden, there was a concentration camp. The guards of that concentration camp had engaged in very serious ill treatment of prisoners. Above all, sadistic acts had been committed. When that became known, the Administration of Justice Saxony interfered. It called for the storm of indignation as well with the SA as with the Gauleiter Mutschmann in Saxony who, without any exaggeration, was one of the most wild Gauleiters we had in Germany at all. At that time I succeeded in persuading the leader of the SA group Saxony that the SA man and the guards of Hohenstein had acted in a very despicable manner. The leader of the SA group Saxony dropped the men and forbade all enrollment in SA organizations on the part of these men. The Gauleiter Mutschmann, on the other hand, made every effort to support these people, but Thierack stopped all opposition on the part of Mutschmann and saw to it that a prosecution was started and a trial was fixed. Attempts on the part of Mutschmann to matters were rejected.
In the meantime, the centralization of the Administration of Justice proceeded and the case in that phase, that is to say while it was being dealt with at the Ministry, was transferred to the Reich Ministry of Justice in Berlin. On first April 1935 the centralization was completed. The trial in the Hohenstein case was held at the middle of May 1935 and led to the conviction of almost all the defendants.
Q: May it please the Court, when I refer to a document, I will submit the document concerned. I am concerned with letters written in the years '35 and '36 which the prosecution in the IMT trial introduced against the SA.
THE PRESIDENT: Would you give me the name of that case that you were speaking of? What was the town where this occurred?
THE WITNESS: The name of that town is Hohenstein in Saxony: H-O-H-E-N-S-T-E-I-N.
BY DR. SCHILF:
Q: I shall now ask you to describe to the Tribunal the work you performed at the Reich Ministry of Justice. First of all, how was it that you got into the Reich Ministry of Justice?
A: That happened in the course of the centralization scheme when the Minister of Justice, Dr. Guertner, appeared to have the desire concerning the Reich Ministry of Justice which comprised the administration of Justice of 16 states (Laender) to have the Laender represented at the agencies of the Ministry approximately according to their size and their importance. That is how it happened that on the first April 1935, from I believe every former Lander Ministry of Justice at that time, officials were transferred to Berlin.
From the Ministry of Justice for Saxony, four officials were transferred to Berlin. I never expressed the wish to be transferred to Berlin. The fact that I too was transferred to Berlin is probably due to the fact that negotiations had been held between Thierack and Guertner. I don't know though. About my being transferred to Berlin, I heard at the middle of March 1935. A fortnight later, I was due to start work in Berlin.
Court No. III, Case No. 3.
Q What was this sphere of work which was transferred to you at the Ministry in Berlin?
A Because from 1929 I had worked for the prosecution, and also because at the Ministry of Justice for Saxony, I had dealt with special measures concerning penal law, I was at the Ministry of Justice given a position in Division III at that time, which later became Division IV. I was appointed auxiliary advisor on high treason cases, and as district referent (Bezirks Referent) for several districts of Oberlandesgerichte, District Courts of Appeal, both in political and non-political cases.
Q And of what did your work consist concerning high treason matters?
A The District Courts of Appeals, Oberlandesgerichte, which were competent for high treason cases, and the People's Court, had to report on the indictments and on the sentences. These indictments and sentences were examined for their legal correctness. Statistical charts were made out concerning the type of high treason, the locality where it was committed, the legal provisions on which the sentences were based, and then the auxiliary advisor, Hilfsarbeiter, referred those indictments and sentences to the referent, who took care of the legal and statistical evaluation. At that time no directives were given. That is to say as long as I was the auxiliary advisor on those matters. I only held that position for six or nine months. Nor can I remember that any death sentence at all was among the sentences. A report in "Deutsche Justiz" stated that in 1938, that is to say at a time when I no longer dealt with those matters, the People's Court in the whole of the year 1938 passed one death sentence for high treason and 16 death sentences for treason.
Q Your work as a so-called district referent, Bezirks Referent, that is to say, the work you did in supervising various districts of Oberlandesgerichte, would you give us a description of that, please?
A My work as a district referent for Oberlandesgerichte con Court No. III, Case No. 3.cerning political matters was restricted almost exclusively to dealing with penal matters, which came under the Malicious Acts Law.
Under the Malicious Acts Law, assertions of incorrect facts or the spreading of malicious rumors were punished, which were designed to undermine the confidence in the institutions of the State or the Party, or which were aimed at loading personalities of the State and Party. Furthermore, but that played a secondary party it also settled the punishment for the unauthorized wearing of the Party uniform. The prosecution of such crimes was only possible if the prosecution had been ordered by the Minister of Justice, with the exception of a small few minor points, and nearly all the orders by the Reich Minister of Justice were only possible if the Deputy of the Fuehrer, that was Reichminister Hess, had consented to giving an order for the prosecution. That was the legal provision. That ruling made necessary a tremendous bureaucratic machinery. For every such penal case had to be reported on by every prosecutor throughout in the Reich, to the Reich Ministry of Justice. The Ministry had to contact the Staff of the Fuehrer's Deputy, and next a report had to go to the various prosecution authorities as to whether there was to be a prosecution of not. The task of the Ministry of Justice was above all to find ways which would shorten that lengthy procedure and make it possible for cases to be dealt with speedily. But their task was also to see to it that the rulings were uniform. That is to say, that remarks of that kind were prosecuted in one part of Germany and were not prosecuted in another part of Germany. Some standard, too, had to be established, so that not every remark was considered punishable.
The various referats at the various districts dealt with these matters. The reports which arrived in the form of extracts, in order to be sent in that form to the Fuehrer's Deputy, were afterwards summarized and sent to Munich. That centralized way of dealing with the reports was the main task of the political general referent, of which I was in charge at the time. Just as the district referats -- I will Court No. III, Case No. 3.revert later to the general referat -- these political district referats were, however, considerably restricted by Special Referate (Sonder Referate). Thus, for example, there was a special referat (section) for high treason, and a special referat (section) for treason.
There was a central prosecution agency which dealt with particularly important and sensational political cases. All those cases were not dealt with by the political district referat, the district sections. That meant that it was mainly the Malicious Acts crimes which were being dealt with at the political district referat.
Q As District Referent did you over deal with so-called race protection matters, or with penal matters that concerned church affairs?
MR. LAFOLLETTE: I would like to have the time stated in the question. I object to it at this time, as we don't know what time you are talking about.
THE PRESIDENT: It is a general question, whether he ever had anything to do with it.
MR. LAFOLLETTE: I thought virile in this particular capacity there was a particular time. I thought while at this office.
THE PRESIDENT: Counsel, bring out the time.
A I am now talking about the time when in 1935 I entered the Reich Ministry of Justice for some months as auxiliary advisor on high treason cases, and was also the expert and district referent for political criminal matters of some districts of Oberlandesgerichte. This refers roughly to the time from 1935, April of that year, to the end of 1936. Concerning the so-called race protection cases, that is penal cases under the Nurnberg laws, I, as the referent for political penal cases, did not deal with them. These cases were considered non-political. There was a special section, Sonder Referat, that dealt with the main questions; and I held the district referat for non-political cases only for a few weeks as relief. General cases concerning church criminal affairs were also dealt with by the Sonder Referat (a special section).